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back to article Hey, FBI. Wanna track someone by cellphone? Get a proper warrant, says US appeals court

A US appeals court says data revealing the whereabouts of you and your phone is protected under the Fourth Amendment – meaning it is protected from unreasonable searches by the cops and Feds. As a result, the police will have to get a warrant to access citizens' cellphone location records, and will have to prove there is " …

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  1. Mark 85

    A start, maybe, in the right direction

    Whilst I see the need to be able to convict criminals, especially serial crims, I believe this will go a long way to protecting the overall population from abuse. Yes, it's procedural in it's warrant vs. court order but a necessary one under the Constitution. We don't need a police force pulling someone over for a speeding violation who's locations for the last 6 months end up on a police database because the cops can. Probable cause is a very important part of the 4th Amendment and it should be enforced via warrant, not some judge getting a call and saying "sure... you can have the data".

    Maybe, with luck, this could spread to other areas of data gathering in the States... probably won't ... but one can hope.

    12 0 Reply
  2. moreflamewars?
    Trollface

    I for one

    appreciate a nice belly-shirt pic with my constitutional law.....

    1 0 Reply
  3. Tromos

    Want an alibi?

    Leave the phone at home.

    5 0 Reply
    1. I. Aproveofitspendingonspecificprojects
      Reply Icon

      Pro activity

      How long before we can flick a switch marked Privacy to switch to sim cards that are reserved for dodgy deals?

      0 0 Reply
    2. Pascal Monett Silver badge
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      Re: Want an alibi?

      In truth, you have to admit that undertaking criminal activity with a record-keeping gps-enabled gizmo in your pocket sounds pretty stupid.

      1 0 Reply
  4. Medixstiff

    Does anyone in the US get confused...

    Trying to figure out how many circuit courts there are and what they all do?

    4 0 Reply

    1. This post has been deleted by its author

    2. Anonymous Coward
      Reply Icon
      Anonymous Coward

      Re: Does anyone in the US get confused...

      AFAI (an American) know, each circuit courts covers cases from an exclusive handful of states. So, most of us would only ever have to deal with one circuit court. (Yeah, most of us will never even see a circuit court in the first place.)

      Their purpose seems to be more related to legal theory rather than application of justice. In that regard, they provide a convenient buffer for the SCotUS; they can handle a lot of the issues about how laws can and should apply without having to deal with getting a case on the limited docket of the SCotUS. And, so long as there aren't any contradictory rulings between circuit courts, there usually isn't much reason for the SCotUS to weigh in on the issue. However, unlike the SCotUS, they're usually disinclined to throw out laws unless they have no other choice; the circuit courts are usually much more interested in finding ways to apply existing precedent. The SCotUS is generally more willing to discard precedent if it conflicts with the Constitution (in any interesting way that they can agree on.)

      5 0 Reply
  5. tom dial Silver badge

    Relax

    Most people (actually nearly all of them) are not suspected of criminal activity, and therefor not worth the effort required to obtain either a court order or a formal warrant, and therefore are not at risk that their cell phone metadata will be either collected or used against them.

    It may be time for the Supreme Court to revisit Smith v. Maryland and similar cases, but the paranoid panic over this type of government activity is largely unwarranted. The difference between what the police did and what the appeals court decided is necessary is mostly about the degree of justification required for the "search", and therefore the type of document required to authorize it. This is similar, if I remember correctly, to Riley v California, in which the Supreme Court decided that search of cell phone contents incident to an arrest would require a warrant but let the conviction stand. In both cases, the police probably could have obtained warrants, although in Graham a court asked for a warrant might have limited the periods more than did one of the court orders, which covered a period of around six months.

    The decision (linked in the article) gives brief summaries of a number of previous and somewhat related decisions and is interesting to read whether or not you think the court's reasoning persuasive.

    1 4 Reply
    1. Mark 85
      Reply Icon

      Re: Relax

      While you are correct, there is a matter of following the Constitution. The court order work-around was just that... an end run around the 4th Amendment. If the Supremes rule a court order is good, then all is well, right? Or is this part of the slippery slope where we find ways around the Constitution?

      As for not at risk of metadata being collected, then the NSA is all smoke and mirrors on it's collection? Again.. 4th Amendment issue if that data does ever get used. Does this collection make it all "ok" since it's not being used? What if the next administration starts using this info to suppress dissent? Or using other ways that are the stuff of nightmares?

      The biggest issue with all this is the need for and currently the lack of legal challenges. The Supremes are the only ones with the power to say that what's happening on web and with cellphones, et al, is within the Constitution. If it is... fine. If not, then it has to be illegal to do so until the Constitution is changed.

      3 0 Reply
      1. tom dial Silver badge
        Reply Icon

        Re: Relax

        In obtaining court orders rather than warrants, police in both Riley and Graham seem to have followed the law and the generally understood constitutional guidance of Smith and similar decisions, and their practice was consistent with decisions in other cases (in other circuits) as recently as a few months ago. In short: the authorities were following the Constitution. The Fourth Circuit panel majority thought otherwise, apparently in part because of the large amount of data requested and received based on one of the court orders.

        Due to the split between circuits, the Supreme Court is likely at some point to resolve the issue. If they rule that the search in Graham was a Fourth Amendment search requiring a warrant it would be a tightening of the present standard. If they rule the other way, things revert to the status quo, which has been the standard since 1979, more than 35 years ago. Either way, there is no possibility that it will be "part of the slippery slope where we find ways around the Constitution".

        While it is somewhat off topic, the NSA metadata collection was done under the same legal interpretations, more or less (certainly a bit strained to say the least), under a law enacted in part with intent to authorize continuation of a program that nearly everyone agreed was not legal. NSA obtained quarterly orders from a competent court directing carriers to deliver metadata. Since then a different court has made a determination that the Patriot Act did not, in fact, authorize that and the program has expired and one hopes is winding down as provided in the recently passed Freedom Act. Whether this collection was a Fourth Amendment search is, I think, undecided as yet and probably moot.

        1 0 Reply
    2. originalucifer
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      Re: Relax

      ahhh yes, the old "You don't have anything worth hiding from the government, so you shouldn't want to hide it" argument. Always a winner.

      3 0 Reply
    3. Graham Cobb Silver badge
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      Re: Relax

      Most people (actually nearly all of them) are not suspected of criminal activity, and therefor not worth the effort required to obtain either a court order or a formal warrant, and therefore are not at risk that their cell phone metadata will be either collected or used against them.

      Most people are not suspected of being armed robbers, I agree. However, it is clear from documented real-life cases, that anyone seen marching on a demonstration is likely to find themselves targetted by police trying to find reasons to mark them as a potential terrorist or some other sort of suspect. Doing perfectly legal things like protesting should not allow police to trawl through location (or call!) records. Only if there is probable cause of some specific offence (e.g. causing criminal damage during the protest) should that information be accessible.

      The number of people who have made some sort of protest is a lot more than those who are armed robbers.

      1 0 Reply
      1. tom dial Silver badge
        Reply Icon

        Re: Re: Relax

        Police agencies have been monitoring public meetings pretty much as long as there have been police and public meetings. And concern about excessive surveillance of protest activity certainly is warranted in view of numerous well documented instances. That is part of the reason, in the US, for the First Amendment as well as the Fourth. On the other hand crowds, especially those gathered to protest a perceived injustice, have been known to become unruly, resulting in damage and interference with the rights of those they disagree with or who just happen to be nearby. There is ample justification for a reasonable degree of physical surveillance of public protests. There may be, in addition, justification for follow-on surveillance of particular individuals seen as advocating for and possibly engaging in activities that violate laws; and that surveillance could include cell phone location monitoring.

        Nothing in this case or any other that I am aware of supports law enforcement action to "trawl through location (or call!) records" without approval by a court except in exigent circumstances. The issue in this or similar cases is the type of court approval required, not whether it is required. Technological changes over the last several decades has lead to generation and retention of "metadata" far exceeding what occurred or was possible several decades ago. Given that enormous increase in the potentially searchable data, the issue is, essentially, where the boundary should be set between activities that require an ordinary court order based on reasonable suspicion and those that constitute a Fourth Amendment search and require a warrant based on probable cause.

        1 0 Reply
  6. John Robson Silver badge

    There are two cases here

    The general case - you should get a warrant, which requires more than "I have a hunch", and this seems reasonable

    This case - we got a court order (which the court accepted as the corrent thing at the time) in a case where we had pretty good reason for suspicion (multiple similar crimes, catching these guys at/near the latest one).

    I'd suggest that would have been good enough for a warrant, but the court didn't ask for one. I therefore see no issue in handing out a "get a warrant in the future, but this case stands". The only surprise is that a court would do something so sensible...

    4 0 Reply
    1. Christoph
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      Re: There are two cases here

      Yes, that particular case does look like probable cause (though I'm not a lawyer!), particularly as they only asked for records during specific time slots when other similar crimes were being committed, not for general tracking at all times. That does seem quite reasonable.

      2 0 Reply
      1. tom dial Silver badge
        Reply Icon

        Re: There are two cases here

        One of the requests specified a period about six months long, and it appeared to me from the opinion (1) that it was the only one for which records were produced, presumably on the basis that it logically included the others, and (2) was of particular concern to the Fourth Circuit panel, as it should have been. A request for all the records over that length of time, even for specific cell phones should raise immediately the question of whether the request would have been too broad for a warrant, even given the fact that the existing legal standard did not seem to require one.

        0 0 Reply
  7. Intractable Potsherd

    Proven guilty beyond all reasonable doubt?

    It would be interesting to know what other evidence was presented to the jury* other than "Look! Technical stuff and some statistics!" Assuming all the States have the requirement of innocent unless proven guilty beyond all reasonable doubt, then the simple correlation of phones near incidents needs a lot more filling out** to outweigh the reasonable doubt in this case - simply being in the area at unfortunate times shouldn't be enough to get to prosecution, let alone conviction.

    Oh, yes - the topic: There should definitely be a warrant for this sort of search.

    * Assuming the two blokes didn't plead guilty and then try to appeal

    ** E.g. evidence that the phones two of only few in a place where not many people go. Being in the vicinity of three crimes in downtown $CITY would be very different from the phones showing up in the same area as three out-of-town offences, for instance.

    1 0 Reply
  8. ChrisElvidge

    Is it just for law enforcement?

    How do I (as defendant) find out how many other phones were also at these locations?

    0 0 Reply
    1. tom dial Silver badge
      Reply Icon

      Re: Is it just for law enforcement?

      Defense attorneys can arrange for subpoenas, probably including the cell phone companies. In addition, court system rules require that the prosecution make evidence available to the defense.

      1 0 Reply
  9. Anonymous Coward
    Anonymous Coward

    The issue is the definition of "unreasonable"

    There are many legitimate reasons for authorities to monitor the whereabouts of an individual using a cellphone. The majority of the time this is to track known crims or potential crims. This is a good thing and it should continue. A court order should only be required under unusual circumstances, not the other way around.

    0 2 Reply
    1. tom dial Silver badge
      Reply Icon

      Re: The issue is the definition of "unreasonable"

      The authorities were not monitoring the locations of any cell phones. They obtained information about the location of particular phones during a six month period more than six months in the past, presumably to corroborate evidence suggesting that the individuals charged were present at the time and near the place of crimes. Active monitoring of current cell phone location raises additional issues.

      As for either monitoring individuals or retrieving their past locations, we need to have a formally disinterested party like a court review such things rather than having the police do it on their own. There are rules allowing exceptions that allow after-the-fact approval when time and circumstances do not allow requesting an order or warrant ahead of time.

      1 0 Reply
  10. Stevie

    Bah!

    Stupid Bill of Rights.

    Now the terrorists win.

    Why did the authors hate America?

    0 0 Reply

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